Servindi, January 30, 2011 - Experts in environmental issues agree that Emergency Orders 001-2011 and 002-2011 threaten environmental protection, are unconstitutional and go against prior consultation. Both regulations promote 33 investment projects, such as hydroelectric power stations, roads and ports and include variations in the regulation of environmental requirements.
Environmental and Social Protection at Risk
Mariano Castro Sánchez Moreno, Dean of the Law School of the Scientific University of the South (UCSUR), stated that the country can develop without the need for regulations that may lessen the environmental performance of investors.
"By means of the orders, the current Cabinet has decided to reduce or eliminate requirements that guarantee environmental and social protection," he indicated in an article.
As you may recall, Section 5.3 of Emergency Order 001-2011 states that environmental certifications "(...) will not be required to obtain sectorial administrative authorizations granted by such entities in order to carry out the economic activities subject matter of the awarded project."
Because of these orders, Environmental Impact Assessments (EIAs) no longer need to be reviewed or approved before granting final concessions.
"Therefore, any recommendation or decision related to the EIA will be a lost cause. (...) Instead of expediting the decision-making process to promote investment projects, uncertainty and contradictions are created," he said.
In order to avoid environmental and social costs, Mariano Castro states that it is urgent that the Ministry of the Environment assume its role in the approval of EIAs and prevent the Cabinet's regulations from postponing the environmental sustainability of public policies and investments.
Regulations violate the Constitution
For the Dean of the Law School of UCSUR, the regulations are unconstitutional because Article 118 (Paragraph 19) of the Constitution only authorizes the Executive Branch to issue emergency orders for economic and financial matters, not environmental issues. For this reason, Congress should repeal the legal provisions.
César Gamboa, attorney for the Association of Law, Environment and Natural Resources (DAR), adds that these orders are exceptions and only apply in a state of economic disaster or emergency.
The regulations are also incompatible with specific agreements of the Free Trade Agreement (FTA) entered into with the United States.
For example, he explains that Chapter XVIII states that it is inappropriate to encourage investments by weakening or reducing environmental laws. This is not achieved by exempting EIAs as a requirement to obtain the final concession of these projects.
Furthermore, the orders would imply ignoring the views of the inhabitants living near the work included in the environmental studies.
"By granting authorization to begin planning or seek funding for a project, the green light is given to start without having considered the views of the people," added Patricia Patrón, Environmental DAR Consultant.
The change in requirements may create more pressure from companies to obtain approval for EIAs and start the work, because they have prior authorization to prepare the drawings.
"In this case, it is also necessary to establish the prior consultation act," Patrón says. The discussion of this bill has been pending in Congress since last July.
State Opinion
In view of the controversy that arose, some officials denied that the regulations in question affected the environment.
"The administrative authorizations, which allow detailed drawings to be prepared and funding to be sought, will be granted without EIAs. However, no work will begin, if an EIA and a mitigation plan are not presented," stated Jorge León, Executive Director of Pro Inversión.
He added that the exemption of the EIA as a requirement to obtain these authorizations only allows works of national importance to be carried out more easily, without neglecting the environment.
He emphasized that if EIAs are not approved, investors cannot execute them. "It is a risk assumed by the individual who invests in the private sector, not the State."
However, the representative of Pro Inversión stated that EIAs are not definitive for the final approval of a project. "They are considerations to be taken into account that must include a good mitigation plan to counteract these impacts," León stated.
Furthermore, the Minister of Economy, Ismael Benavides, explained, in a radio interview, that the EIAs and works would be carried out in parallel.
"They will definitely be conducted, but it takes 18 months to perform these studies. If you see the list of projects, there are no mining smelters or mining smelters that affect the environment. It is basic infrastructure that has little or no environmental impact," he assured.
Repeal and Marches
The nationalist party has already submitted Bill 4617 to the Peruvian Congress, the objective of which is to repeal Emergency Orders 001-2011 and 002-2011, as they are considered unconstitutional.
Likewise, dock workers have planned to hold a march on February 13 against Order 001-2011and the concession of the Northern Terminal of the Port of El Callao, which is the first project prioritized on the list of 33 works.
The protest was organized by the National Federation of Peruvian Dock Workers (FENTENAPU) and supported by different regional groups, such as the General Confederation of Peruvian Workers (CGTP) and the Confederation of Peruvian Workers (CTP).
Read the proposal to repeal Emergency Order 001-2011 by clicking on the following link:
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Traducción para Servindi de Sylvia Fisher
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